his title the assignee should immediately give notice of the assignment to the debtor or holder of the fund: (St. Eq. § 1047; Sm. Man. sect. 435.)

Q.-If A. assigns to B. a policy on his own life for a valuable consideration and subsequently assigns the same policy to C. also for a valuable consideration, and B. and C. both give notice of their respective assignments to the assurance office, but C.'s notice is served on the office before B.'s notice, what will be the relative legal position of B. and C.? (a)

A.-C. will, if he had no notice of B.'s assignment, have priority over B.; for the policy is a chose in action which, in order that a complete title may be acquired by assignment, requires notice to be given to the debtor or holder of the fund; and he who gives notice to him first has priority: (The Consolidated Insurance Company v. Riley, 1 L. T. Rep. N. S. 209; St. Eq. § 1047; Sm. Man. sect. 436.)

Q. Is the assignee of a chose in action bound by all the equities to which it is liable in the hands of the assignor, and why?

A. He is so bound even without notice, unless the chose in action be a bill of exchange or promissory note, for the assignor cannot confer a better title than he himself had: (Row v. Dawson, 2 L. C. Eq. 736, in notis, 3rd edit.; Sm. Man. sect. 439; see 1873 Act, s. 25, sub-s. 6.)

Q.-In what cases can a writ be issued for the delivery up of specific chattels to the owners?

A. In those cases only where the chattel is of such a nature that the loss could not be fully compensated for by damages. As where the chattel is a family relic or heirloom, such as a horn by which a tenure is held, or an altar-piece (Pusey v. Pusey, 1 L. C. Eq. 654, 2nd edit.; Duke of Somerset v. Cookson, ib., 655.)

ACCOUNT.

Question.-State some of the cases in which a bill in equity for an account laid.

Answer.-A bill in equity for an account laid between trustee and cestui que trust; in partnership transactions; by principals against their factors and agents; and by mortgagors against mortgagees who had been in possession: (Gold. Eq. 82 et seq., 4th edit.)

Q. In an action for an account is it competent for the court to direct that the books in which the accounts required to be taken have been kept, shall to any, and to what, extent be deemed evidence of the truth of the matters therein contained ?

A. Yes, the court may direct that such books be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised: (15 & 16 Vict. c. 86, s. 54; Hal. Suit. 75.)

(a) Also asked thus: By what means may a subsequent incumbrancer of a chose in action gain priority over a prior incumbrancer?

Q.-In what manner, and under what circumstances, can an order be obtained summarily for an account of a partnership, executorship, or trust?

A.—The order may be made at any time after default of appearance to a summons specially indorsed and claiming such account or after appearance, unless the defendant satisfy the court that there is some preliminary question to be tried. The application must be supported by affidavit, stating the grounds of plaintiff's claim to the account: (Ord. XV., rr. 1, 2.)

Q.-If an account be settled between parties, and signed, will the court open the account generally or partially, and, if so, upon what principle?

A. Generally, where an account has been settled, the rule is only to give liberty to surcharge and falsify the account where errors of fact or law are shown in the account, and not to open the account generally, unless fraud is alleged, or the account is between trustee and cestui que trust. For equity discourages laches: (St. Eq. § 527; Sm. Man. sect. 459; Dan. Ch. Pr. 6th edit., 484.)

Q.-Distinguish between the effect of opening the accounts, and that of giving liberty to surcharge and falsify.

A. Where an account is opened generally, the onus of proof is thrown on the party bringing it in, in the other case the account is deemed correct until proved the contrary.

Q. When is leave given to surcharge and falsify accounts?

A. In proceedings for an account, if the defence is that there has been an account stated, the court will not interfere, unless on the ground of mistake, accident, fraud, or undue advantage, by which the account stated is in truth vitiated, and the balance incorrectly fixed. In such cases the court will in some cases direct the whole account to be opened and taken" de novo," but when the mistake or inaccuracy is not shown to affect or stain all the items of the transactions, the court will allow the account to stand with liberty to the plaintiff to surcharge and falsify it. The showing an omission for which credit ought to be given is a surcharge, the proving an item to be wrongly inserted is a falsification : (Snell, 5th edit., 510.)

Q.-Was there any, and what, advantage in the proceedings of a court of equity over those of a court of common law in questions of account? A. The proceedings in an action of account being difficult, dilatory, and expensive, it was seldom used, especially if the demand were of consequence, and the matter of an intricate nature; for in such cases it was more advisable to resort to a court of equity, where matters of acccount were more commodiously adjusted, and determined more advantageously for both parties: (St. Eq. § 443; Sm. Man. tit. 3, ch. 1.)

Q. What is the law as to appropriation of payments?
A.-See answer, ante, p. 31: (Sm. Man. sup.)

ADMINISTRATION.

Question.-Set forth the several stages of an administration action down to a final judgment, distributing the funds brought into court to the various classes of persons usually entitled when the assets are more than sufficient to pay debts and legacies.

Answer. This action down to judgment will be similar to other actions. The judgment, will, however, be preliminary, and direct the accounts and inquiries set out post. (a) These will be worked out in chambers, as hereafter stated. When the eight days have elapsed from the filing of the chief clerk's certificate, the action may then be brought on for further consideration, and a final judgment made. If the assets are more than sufficient to pay debts and legacies, the surplus, being personalty, will belong to the next of kin.

Q-Give a brief outline of the proceedings in the Chancery Division to administer an intestate's personal estate, when there are no next of kin, ab ovo usque ad mala. (b)

A.-Administration would be granted either to a creditor or the Solicitor of the Treasury for the Crown: (Coote Prob. Pr. 97-99, 6th edit.) If granted to a creditor, he issues a writ against other creditors, making the Attorney-General a party. The proceedings are the same as in other suits down to judgment, which is interlocutory, directing the usual accounts and inquiries. These are worked out in chambers in the usual way. This done, the chief clerk makes his certificate, which is approved and filed in the usual way. The action then comes on for further consideration, and for default of next of kin the surplus, if any, is handed over to the Crown. If the crown solicitor administers, a creditor should issue a writ against him for administration: (see Sm. Pr. 311, 689, &c., 7th edit.)

Q. What protection did a court of equity afford to creditors of persons deceased?

A. The protection acquired by creditors, through the aid of a court of equity, was the payment of their debts, the marshalling of assets and securities, and the equal administration of the deceased's estate (see St. Eq. §§ 552, 554, 558, 633, &c.) The Chancery Division retains this exclusive jurisdiction: (1873 Act, s. 34, sub-s. 3.) But the administration of a deceased's insolvent estate may now be carried out in the Bankruptcy Court: (46 & 47 Vict. c. 52, s. 125.)

Q.-Would a court of equity under any, and what, circumstances restrain a creditor from proceeding at law who was not a party to a suit; and how?

A. Yes; as soon as a decree to account was made in a creditor's suit for the administration of assets, equity would, if the executor admitted assets (see Lawton v. Lawton, 3 L. T. Rep. N. S. 205), restrain a creditor,

(a) These actions are, however, generally heard as short causes, without any statement of claim or pleadings, and minutes of the judgment are also usually agreed upon between the counsel, and merely assented to by the judge.

(b)

"Ab ovo usque ad mala" literally means "from the egg to the apple." The Roman feasts began with eggs and ended with apples. English lawyers, therefore, use this expression to mean "from the commencement to the end."

by injunction, from proceeding at law: (Sm. Man. sect. 468.) Unless, .indeed, the creditor had obtained judgment before decree, which he might execute: (see Fowler v. Roberts, 2 L. T. Rep. N. S. 368.) This right of restraining by injunction is now abolished, but application to stay the proceedings should be made to the Division of the High Court in which the proceedings are taken: (1873 Act, s. 24, sub-s. 5.)

Q.-State the several proceedings which may be adopted by a creditor who finds it necessary to resort to equity to enforce the payment of a debt due from his deceased debtor.

A.-A creditor may enforce payment of his debt, and have the estate of his deceased debtor administered in equity either by issuing a writ or taking out an administration summons in the Chancery Division for such purpose, or if the estate is insolvent present a petition in bankruptcy : (Sm. Man. sect. 468.)

Q.-Describe the several steps in an administration action commenced by summons, proceeding in the most expeditious manner possible.

A. A summons is taken out and sealed at the Central Office, and a duplicate filed there; it is then served. If the executor appears he does so at such office, and gives notice thereof. On the return of the summons the parties attend at the judge's chambers, when an order for administration may be made, which must be drawn up, passed, and entered. The accounts and inquiries are then proceeded with, and in due course the chief clerk makes his certificate, which is signed, approved, and filed. The action and matter then come on for further consideration, and a final judgment is made, the costs taxed, and the assets distributed: (Evans' Ch. Pr. 20 et seq. See Ord. LV.)

Q.-By what summary process can a legatee or creditor, or next of kin of a deceased person, procure the administration of his real and personal estate? (a)

(a) The executors or administrators of a deceased person or any of them, and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, next of kin, or heir-at-law, or customary heir of a deceased person, or as cestui que trust under the trust of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may take out, as of course, an originating summons returnable in the chambers of a judge of the Chancery Division, for such relief, of the nature or kind following, as may by the summons be specified, and as the circumstances of the case may require (that is to say), the determination, without an administration of the estate or trust, of any of the following questions or matters :(a) Any question affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next of kin, or heir-at-law, or cestui que trust; (b) The ascertainment of any class of creditors, legatees, devisees, next of kin, or others;

(c) The furnishing of any particular accounts by the executors or administrators or trustees, and the vouching (when necessary) of such accounts;

(d) The payment into court of any money in the hands of the executors or administrators or trustees;

(e) Directing the executors or administrators or trustees to do or abstain from doing any particular act in their character, as such executors or administrators or trustees;

(f) The approval of any sale, purchase, compromise, or other transaction; (g) The determination of any question arising in the administration of the estate or trust: (Ord. LV., r. 3.)

A.-Any such persons may obtain a summons from a Chancery judge at chambers requiring the executor or administrator to attend before him at chambers, to show cause why an order for the administration of the real and personal estate of the deceased should not be granted; and if the order is granted it has the effect of a judgment made on the hearing of a cause (Ord. LV., r. 4.)

Q.-In what way and in what case can a person claiming to be a creditor, or interested under a will, procure the administration of the real estate ?

A.-These persons may now in like manner, by summons at chambers, obtain an order for the administration of the real estate of a deceased person: (Ord. LV., r. 4.)

Q. Can a creditor issue a writ on behalf of himself and all other the creditors of the testator for the administration of his estate against the executors before the will has been proved?

A. Yes; if the executors have elected to administer; for the rights of the creditors are not to be impeached by the delay of the executors: (Wms. Exors. 219, 3rd edit.) But probate must be obtained before judgment: (Seton on Decrees, 46, 2nd edit.)

Q-Write out the title of the proceedings and the indorsements on the writ in an action by A. B., a creditor, to administer the real and personal estate of X. Y., who died intestate, C. D. being his administrator and E. F. his heir-at-law.

A. In the High Court of Justice.-Chancery Division.

V.-C. or Mr. Justice

In the matter of the estate of X. Y., deceased.

Between A. B., on behalf of himself and all other
creditors of X. Y., deceased, who shall
come in and contribute to the costs of
this action

C. D. and E. F.

and

Plaintiff,

Defendants.

The plaintiff's claim is for the administration of the real and personal estate of X. Y., formerly of, &c., deceased, and for a receiver of the personal estate and the rents and profits of the real estate of the said X. Y., and for such further and other relief as the nature of the case may require.

The plaintiff sues as a creditor of the said X. Y.

The Defendant C. D. is sued as the administrator of the said X. Y., deceased, and the Defendant E. F. as the heir-at-law of such deceased.

Q.-In partnership and administration actions, what advantage, as regards subsequent proceedings, is gained by indorsing the writ of summons with a claim that an account be taken?

A. That, in default of appearance (after affidavit of service), or after appearance, unless the defendant satisfies the court that there is some preliminary question to be tried, an order will be made for the account, with all directions formerly usual in the Court of Chancery in similar cases: (M'I. & E. Prac. p. 141.)